Seoul Central District Court-2016-Gohap-50351 ( October 20, 2017)

Whether a seizure disposition against a right to claim reimbursement of cashier's checks is legitimate or not.

A delinquent taxpayer acquired a right to claim reimbursement of cashier's checks, and the plaintiff seized the above right to claim reimbursement of benefit, and notified the third debtor to the defendant, who is the third debtor, and the seizure notice, which includes the delivery of payment to the tax office until May 27, 2016, reaches the defendant on May 27, 2016. Thus, the defendant is obligated to pay the collection money to the plaintiff.

Article 41 (Procedures for Attachment of Claims)

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the subsequent additional payment order shall be revoked.

The defendant shall pay to the plaintiff 10 million won with 5% interest per annum from June 3, 2016 to December 5, 2018, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining incidental appeal and the defendant's appeal are dismissed, respectively.

3. The total cost of the lawsuit (including the cost of the application for the return of provisional payments) shall be borne by the Defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim, purport of appeal, incidental appeal, and purport of application for the return of provisional payment

1. Purport of claim

In the first place, the defendant shall pay to the plaintiff 1 billion won and the amount of KRW 900 million from May 28, 2016 to the delivery date of a copy of each complaint of this case, 5% per annum from June 3, 2016 to the delivery date of a copy of each complaint of this case, and 15% per annum from the next day to the day of full payment. Preliminaryly, the defendant shall pay to the plaintiff 1 billion won and the amount of KRW 1 billion from June 27, 2016 to the day of full payment, 5% per annum from June 20, 2016 to the day of delivery of a copy of each complaint of this case, and 15% per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall

The dismissal is dismissed.

3. Purport of incidental appeal;

The judgment of the first instance shall be modified as stated in the purport of the claim.

4. Purport of request for the return of provisional payments

As a result of the return of provisional payments, the Plaintiff shall pay to the Defendant 965,219,178 won and the amount calculated by 5% per annum from October 27, 2017 to the service date of a duplicate of the application for the return of provisional payments of this case, and 15% per annum from the following day to the day of complete payment.

1. Basic facts and the plaintiff's assertion

The reasoning for this part is that the court's reasoning is the same as the corresponding part of the reasoning of the judgment of the first instance, except that the term "each check in the last half of the judgment of the first instance (hereinafter referred to as "each check in this case") is "each check in this case", and that the term "each check in this case" is "each check in this case", and that where it is individually named, the corresponding part of the reasoning of the judgment of the first instance is the same as that of the corresponding part. Therefore, it is accepted by the main sentence of Article 420 of

2. Judgment on the main claim

A. Relevant legal principles

1) Where the right arising out of a check terminates due to the lapse of the time limit for presentment for payment, etc., the holder of the check may exercise the right to claim reimbursement of benefit against the drawer, etc. (see Article 63 of the Check Act). However, the right to claim reimbursement of benefit is a nominative claim. However, the act of a bank and other holders of a cashier’s check issued by a financial institution transfers the check with the lapse of the time limit for presentation to the holder of the check amount and the right to claim reimbursement of benefit arising out of the extinction of the right on the check at the same time as the right to claim reimbursement of benefit arising out of the extinction of the right on the check is transferred to the holder, and the right to notify the issuer of the transfer on behalf of the holder is given (see Supreme Court en banc Decision 70Da2462, Jan. 13,

2) According to Article 450 of the Civil Act, a transfer of nominative claim shall not be effective against any third party, other than the obligor, unless the obligor notifies the obligor of the transfer of nominative claim or the obligor’s consent, and this notification and consent cannot be asserted against the obligor or any third party, without the obligor’s consent. In addition, even in a case where the assignment of claim with a fixed date is notified, the order between the assignee of the claim and the person executing the provisional attachment or seizure order, with respect to the same claim, shall be determined after the arrival of the third obligor of the notification of the transfer of claim with the fixed date and the provisional attachment or seizure order (see, e.g., Supreme Court en banc Decision 93Da2423, Apr. 26, 1994). Unless it is not made by the notification of the transfer of assignment of claim or the certificate with the obligor’s consent, the obligor may not oppose the execution obligee on the above claim in the transferor’s letter on the ground of the repayment of the obligation based on such assignment of claim and its consent (see, etc.

B. Determination as to the existence of seized claims

1) The claims of thisA, attached by the Plaintiff in accordance with the disposition procedure for arrears, are claims for reimbursement of benefits relating to each of the instant checks as seen earlier, and the claims for reimbursement of benefits arise to the holder of the check at the time when the rights on the check are extinguished. Thus, thisA acquired the right to claim reimbursement of benefits relating to each of the instant checks. In other words, it is proved that thisA held each of the said checks at the expiration of the period for presentment for payment of each of the instant checks. The Plaintiff, who claimed the existence of the seized claims, bears the burden

2) The expiration date of the presentment period for payment of each of the instant checks

A check to be issued in Korea shall be presented for payment within 10 days (see Article 29(1) of the Check Act). Article 29(4) of the Check Act provides that when a check differs between the date on which the check is actually issued and the date on which the date of issue is indicated, the period of presentation shall be calculated based on the date on which the check is issued in calculating the period of presentation. In accordance with the general principle of Article 61 of the Check Act, the date on which the check is indicated as the date of issue shall not be counted as the first day, but shall be counted from the following day (see Supreme Court Decision 81Da1000, Apr. 13, 1982). If the last day of the period under the Check Act is a legal holiday, the period shall be extended from 10th day after the last day of 20th day (see Article 60(2) of the Check Act. 16th day after the date of issuance to 20th day after the 16th day after the 16th day of 20th day following the 16th day of issuance to 16th day. 16th day.

3) Whether this A was in possession of each of the instant checks at the expiration of the presentment period for payment of each of the instant checks

A) In addition to the respective statements and images set forth in Gap evidence 5, 6, 7, and 15, witness of the first instance trial, EA, thisCC, and ParkD’s testimony, the following facts can be acknowledged:

(1) On November 10, 2014, at the time of ownership of thisA, the court rendered a voluntary decision to commence the auction (hereinafter referred to as "the auction procedure in this case") on ten parcels, including L43-24, including L43-24, at the time of ownership of thisA, and on May 16, 2016, the construction company (hereinafter referred to as "construction") received a decision to permit the sale of approximately KRW 6.1 billion at the auction procedure in this case. On February 1, 2016, the Defendant used the cashier's checks (the check number of KRW 3859, 385939, 385942 through 3859494946, which was different from the checks in this case) at around 5.16, 2016 at the auction procedure in this case.

(2) On June 24, 2016, 00 million won, 00 million won was presented at a bank and 500 million won was received, 00 million won was transferred to the bank account in the name of CC (Construction representative Director). On June 27, 2016, CC remitted the said amount to the NAC account in the name of construction, and used the said amount as the remainder of successful bid in the auction procedure of this case.

(3) A check Nos. 6 through 9 was issued to CC via 0B. On June 27, 2016, thisCC presented that each of the above checks was paid at the Defendant’s branch and received KRW 400 million from the Defendant’s branch, and remitted the checks to the account in the name of construction on the same day. The said money was also used as the remainder of the auction in the instant auction procedure.

(4) On June 20, 2016, the 100 million won, which was presented by the Defendant at the Defendant’s branch, re-issued 100 million won to 100 million won cashier’s checks at the same branch, and then delivered 79 copies of the said check to CC. This CC presented 79 copies of the said check at the Defendant’s branch on June 27, 2016 and received 79 million won and transferred the said check to the account in the name of construction, and used the said money as the remainder of the successful bid in the instant auction procedure.

(5) The Nonparty’s check was delivered from thisA as the price for construction. The time when the check was delivered is the end of April 2016, from the date of the payment of the bid deposit, to the point of time before the date of the payment of the bid deposit. However, Park Jong-chul testified to the effect that the time when the 0B received each of the instant checks from this court in the first instance court is similar to the time when the 0B received the Nonparty’s check from thisA.

(6) On June 24, 2016, when 0B visited the bank to make a payment of No. 1 or 5 checks, thisA was accompanied to the said branch. ThisA testified from the court of first instance to the effect that “A issued the said checks to 0B prior to the said branch” with “B at the court of first instance,” but was unable to make a statement at any time and at any time, at the time of the delivery. In addition, even if the check was already issued to 0B, it did not explain the reasons for visiting the said branch as well as for the reason for visiting 0B.

(7) Although thisA testified that it was issued a receipt from 0B while issuing each of the instant checks, it still did not submit the receipt.

B) In light of the above facts, it is reasonable to view that this case’s check was held at the time when the period of presentment for payment of each of the instant checks expires (in the case of the check Nos. 1 through 9, February 11, 2016; and in the case of the check Nos. 10 through 19, February 15, 2016), and therefore, this case’s check was acquired at the expiration of the period of presentment for payment. Thus, this case’s check shall be deemed to have been acquired at the expiration of the period of each of the instant checks.

C. Whether thisA’s right to reimbursement can be asserted against the Plaintiff on the ground of transfer of the right to reimbursement

1) As seen earlier, thisA acquired the right to claim reimbursement of benefit with respect to each of the instant checks. According to the above basic facts, since the Plaintiff’s notification of seizure with the right to claim reimbursement of benefit with the right to claim reimbursement of benefit was served on May 27, 2016 and June 2, 2016 on the part of the Defendant, the Defendant is obliged to prove that, in order to oppose the Plaintiff on the ground that the Plaintiff was paid the check to 0BB in receipt of each of the instant checks from this Party or to thisCC, the Defendant was given a notice of transfer or consent with the fixed date prior to the delivery of the above notification of seizure. However, there is no evidence to prove that the Plaintiff had satisfied the notification or consent with the above right to claim reimbursement of benefit with the above 0BB or thisCC prior to the arrival of the Defendant.

Therefore, even if the Defendant paid the check money to 0BB or ECC, the holder of each of the instant checks, it cannot be asserted against the Plaintiff, the execution creditor.

2) On this issue, the defendant asserts that since the right to claim reimbursement of benefit of the cashier's checks is transferred by issuing the check, seizure of the right to claim reimbursement of benefit of each of the checks of this case shall follow the method of seizure of securities. Since the plaintiff acquired the right to claim reimbursement of benefit of each of the checks of this case, the above seizure is invalid.

However, since the right to claim reimbursement of benefit is not a nominative claim but a nominative claim, the transfer of the right to claim reimbursement of benefit must be made by means of a general nominative claim transfer. However, in case where the lawful holder of a check transfers the check whose right on the check expires with the time limit for presentment of payment, it can be deemed as the act of transferring the check amount and the act of granting the right to notify the transfer on behalf of the holder at the same time when transferring the right to claim reimbursement of benefit accrued to the holder and at the same time giving the right to notify the transfer on behalf of the holder (in this case, if the obligor and the transferee of the right to claim reimbursement of benefit are able to oppose the transferor, it shall be required to notify the fact of transfer or consent of the obligor on behalf of the transferor). Therefore, seizure of the right to claim reimbursement of benefit is sufficient to be made by the method of seizure

D. Defendant’s duty to pay the collection amount to Plaintiff

1) In case where a claim is seized by the head of a tax office in accordance with the procedure for disposition on default under the National Tax Collection Act, the obligor of the seized claim may not perform his obligation to the obligee. Meanwhile, in case where the head of a tax office subrogated the obligee by notifying the obligor of the attached claim pursuant to Article 41(2) of the National Tax Collection Act, the head of a tax office shall be deemed to have acquired the right to collect the claim. Thus, when the due date has come to the due date, the obligor of the attached claim shall be liable to perform it to the head of a tax office, which is the subrogated obligee (see Supreme Court Decision

The Plaintiff’s seizure of the right to claim reimbursement of the above benefit of thisA against the Defendant, who is the garnishee, notified the Defendant that the claim for reimbursement of the benefit was made and that the claim for reimbursement of the benefit was made until May 27, 2016, and notified the Defendant that the amount of the claim for reimbursement of the benefit was paid to him/her to him/her until June 2, 2016, and that the Plaintiff notified him/her that the amount of the claim for reimbursement of the benefit was paid to him/her until June 2, 2016, pursuant to Article 41(2) of the National Tax Collection Act, the Plaintiff may collect the claim for reimbursement of the benefit from the Defendant to the extent of the delinquent amount of the claim for reimbursement by subrogation of this Act, the

2) Therefore, with respect to the Plaintiff’s total amount of KRW 1 billion and KRW 900 million, the Defendant is obligated to pay to the Plaintiff 5% per annum as prescribed by the Civil Act from May 28, 2016 following the due date of the above notification of attachment until October 20, 2017, which is deemed reasonable for the Defendant to dispute over the existence and scope of the obligation under the above notification of attachment, 15% per annum as prescribed by the Civil Act, from October 20, 2017, which is the date of the first instance judgment, from the next day to the date of full payment, as to the remaining KRW 100 million, from June 3, 2016 following the due date of the above notification of attachment to the date of full payment; and 5% per annum as prescribed by the Civil Act until December 5, 2018; and 15% per annum as to damages for delay from the next day to the date of full payment.

3) Ultimately, the Plaintiff’s primary claim is justified within the scope of the above recognition (as long as most of the primary claim is admitted as above, it does not determine whether the conjunctive claim is a preparatory claim).

3. Conclusion

Thus, the plaintiff's main claim of this case is accepted as it is without merit, and the remaining main claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the plaintiff corresponding to the above additional amount among the judgment of the court of first instance shall be revoked, and the above additional amount shall be ordered to be paid to the defendant. The plaintiff's remaining incidental appeal and the defendant's appeal shall be dismissed as it is without merit.